A statute
providing for a continuance of a trial or hearing in a lawsuit if an attorney
of record is a member of the Legislature is directory, not mandatory, and
subject to exceptions, the Fourth District Court of Appeal has ruled.

Div.
Three Wednesday denied a writ of mandate sought by Verio Healthcare, Inc. and
its principals in litigation brought against them by SG Homecare, Inc. The
plaintiff alleges that Verio’s principals, who are former employees of SG,
breached contractual and fiduciary duties and stole trade secrets.

The
SG parties moved to disqualify Buchalter Nemer, alleging that SG Homecare had a
retainer agreement with the firm before the Verio principals left, and that
there was a substantial relationship between the new litigation and the firm’s
prior representation of SG Homecare.

The
defendants also moved for a nine-month continuance based on Wagner’s status as
a legislator. They cited Code of Civil Procedure §§595 and 1054.1, providing
that attorneys who are members of the state Legislature are entitled to a
continuance and an extension of time respectively unless the continuance or
extension would defeat or abridge the other party’s right to provisional or
pendente lite relief.

In
their opposition, the plaintiffs cited Thurmond v. Superior Court (1967)
66 Cal.2d 836, which held that an earlier version of the statutes had to be
interpreted as directory in order to avoid a constitutional conflict regarding
the separation of powers between the Legislature and the Judicial branch.

Orange
Superior Court Judge Sheila Fell denied the motion without explanation. The
Court of Appeal initially denied a writ summarily, but was directed to hear the
merits by the state Supreme Court.

Justice
Raymond Ikola, writing for the panel, said that a 1968 amendment to the
statutes, stating that a continuance “is mandatory unless the court determines
that such continuance would defeat or abridge a…right to invoke a provisional
remedy such as…temporary restraining order or preliminary injunction,” suffers
from the same constitutional problem as the pre-Thurmond legislation.

“Unless
sections 595 and 1054.1, subdivision (b) are interpreted as directory, they
continue to infringe on the independence of the judiciary,” Ikola wrote.

He
cited People v. Engram (2010) 50 Cal.4th 1131, which arose out of the
dispute between the Riverside Superior Court leadership and then-District
Attorney Rod Pacheco over the handling of criminal cases that were about to
reach the speedy trial deadline. The high court held that Penal Code §1050,
which gives criminal cases precedence over other types of litigation, does not
impose an “absolute, inflexible command” that all other court business be set
aside to try criminal cases.

The
justices agreed with the lower courts that an accused burglar was entitled to a
speedy trial dismissal because the statute does not require that juvenile,
family, and probate departments be given over to criminal trials when no other
department is available.

Ikola
explained that the separation-of-powers analysis was not critical to the Engram
decision because the statute gave criminal cases priority “consistent with the
ends of justice.” But the trial judge’s decision to deny a continuance is
consistent with Thurmond, he said, because it reasonably balances “the nature
and urgency of the rights involved” and the ability of Wagner’s clients to
secure other counsel against whatever detriment would be incurred as a result
of not having their chosen counsel available.

Ikola
also concluded that the “provisional remedy” exception to the statute applies
because the plaintiffs may seek a preliminary injunction.